DISTRICT COURT OF QUEENSLAND

CITATION:	ZZB v The Queensland Police Service [2023] QDC 60	
PARTIES:	ZZB
(appellant)
v
THE QUEENSLAND POLICE SERVICE
(respondent)	
FILE NO/S:	2122/22
	
DIVISION:	Appellate	
PROCEEDING:	Appeal	
ORIGINATING COURT:	Magistrates Court at Richlands	
DELIVERED ON:	6 February 2023 (ex tempore)	
DELIVERED AT:	Brisbane	
HEARING DATE:	6 February 2023	
JUDGE:	Muir DCJ	
ORDER:	1.	The appellant’s conviction for common assault on 2 Aug 2022 is set aside. The matter is remitted back to the Magistrates Court at Richlands to be heard by another Magistrate other than Magistrate Shearer.
2.	The appellant is granted bail on his own undertaking. 
3.	The sentences of 4 months imprisonment imposed on each of the other four offences, being failing to take reasonable care and precaution in respect of a syringe or needle, the possession of utensils or pipes that have been used, possession of property suspected of having been used in connection with the commission of a drug offence, and the unlawful possession of suspected stolen property, are set aside and in lieu of each of those sentences the appellant is convicted and not further punished. 
4.	The convictions are recorded.
5.	The protection order made on 3 August 2022 is set aside and that matter is remitted back to the Magistrate’s court at Richlands for a hearing by another Magistrate other than Magistrate Shearer. 
	
CATCHWORDS:	CRIMINAL LAW – APPEAL AGAINST CONVICTION – Where appellant found guilty of one count of common assault – whether the finding of guilt was unsafe and unsatisfactory and against the weight of the evidence – Whether the Magistrate’s reasons were adequate – Whether the Magistrate erred by failing to make any adequate findings of fact – Whether the Magistrate failed to consider the failure by the prosecution to call material witnesses – Whether the Magistrate erred in failing to adequately direct himself as to whether the assault was unlawful – Whether upon the conviction being set aside it was necessary to remit the matter back to the Magistrates Court – Whether the Final Protection Order should be set aside as not necessary or desirable
CRIMINAL LAW – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE EXCESSIVE OR INADEQUATE – Whether sentences imposed by the  Magistrate for three minor drug offences and  one count of property being suspected of being stolen were excessive – Whether sentence for one count of common assault  lead to error in the sentences imposed for other offences – Whether issues of totality where adequately taken into account by the Magistrate – Whether upon sentences being set aside the appellant ought to be convicted (with convictions recorded) and not further punished on re-sentence   
	
LEGISLATION:	Criminal Code Act 1889 (Qld) 
Justices Act 1886 (Qld) ss 222, 225
	
CASES:                       	Built Qld Pty Limited v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd [2022] QCA 266
Buse v Commissioner of Police [2018] QDC 90
Devries v Australian National Railways Commission (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Gartner v Brennan [2016] WASC 89
House v The King (1936) 55 CLR 444
Jones v Dunkel (1959) 101 CLR 298
McDonald v Commissioner of Police [2017] QCA 225
R v McConnell [2018] QCA 107
R v Tout [2012] QCA 296
	
COUNSEL:               	Jack Kennedy for the appellant

Anthony Hall for the respondent
	
SOLICITORS:	Aboriginal Torres Strait Islander Legal Service for the appellant

Commissioner of Police for the respondent

Introduction
[1]	ZZB appeals under s 222 of the Justices Act 1886 (Qld) against both his conviction and sentence for one count of unlawful assault following a short trial in the Richlands Magistrates Court on 3 August 2022. 
[2]	After finding the appellant guilty of this offence, the Magistrate sentenced the appellant to 12 months imprisonment to be served cumulatively on  a sentence of two years imprisonment earlier imposed on the appellant (on 2 March 2021); 75 days of presentence custody was declared; and the appellant’s parole eligibility date was set at 3 February 2023.  On the same day, the appellant entered guilty pleas to three minor drug offences and one count of property being suspected of being stolen. After the guilty verdict for the common assault was returned, the appellant was sentenced to four months imprisonment on each of those counts to run concurrently with the sentence imposed for the common assault.  That sentence is part of this appeal as well. 
[3]	The single ground of appeal against conviction is that the finding of guilt was unsafe and unsatisfactory and against the weight of the evidence. The appeal against sentence is on the basis that the sentence imposed was manifestly excessive.   
Relevant legal principles 
Appeal against conviction 
[4]	The appeal against conviction is by way of rehearing on the evidence given in the proceeding before the Magistrate.  It is well established that the task for this court is to undertake  a ‘re-hearing’ in the technical sense, requiring a real review of the record of proceedings below (including the Magistrate’s reasons), rather than conducting  a completely fresh hearing. This court must make its own determination of the relevant facts in issue from the evidence. But in doing so, it must give due deference and attach a good deal of weight to the Magistrate’s view.  There are obvious and natural limitations to this undertaking including difficulties evaluating witness credibility having not heard and seen the witnesses first hand.  The caution to be exercised before setting aside findings of fact by a trial judge or magistrate was identified by the High Court in Devries v Australian National Railways Commission (1993) 177 CLR 472 as follows: 
“More than once in recent years, this Court has pointed out that a finding of fact by a trial judge (or magistrate), based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact . If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his (or her) advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable." 
[5]	In this case, both lay witnesses gave conflicting evidence about the verbal and physical interaction that occurred between them, and others, leading up to the charge.  Some, but not all of what happened, is observable, but not audible in the CCTV footage that was admitted into evidence. I have viewed this evidence in chambers and in open Court.  It follows that these observations are most relevant to this case.  
[6]	Ultimately, to succeed on the appeal against conviction, the appellant must establish some legal, factual or discretionary error on the part of the Magistrate.	
Appeal against sentence 
[7]	In terms of an appeal against a sentence, s 222(2)(c) of the Justices Act provides that if a defendant pleads guilty then there may only be an appeal on the grounds that the punishment or penalty was excessive or inadequate. 
[8]	Such an appeal is by way of re-hearing on the original evidence on the record. Section 225 empowers a Judge to confirm, set aside, or vary an appealed order, or make any other order considered just.  
[9]	On an appeal against sentence it is not sufficient for this court to intervene, that this court considers it might have taken a different course between the competing considerations which have to be weighed in the exercise of the discretion. Again, it must appear that some error has been made in exercising the discretion of the kind identified in House v The King (1936) 55 CLR 499 [at 504]. If the Magistrate acted upon a wrong principle, if he allowed extraneous or irrelevant matters to guide or affect him, if he made a mistake about the facts or if he did not take into account some material consideration, then the appellate court may exercise its own discretion in substitution for his, if it has the materials for doing so.  
[10]	The crucial question on an appeal under s 222(2)(c) remains, in my view, whether upon a proper review of the original record, the sentence was excessive.  
[11]	In the present case, apart from the general ground that “in all of the circumstances” the sentence was manifestly excessive, the appellant relies on a number of errors which he submits led the Magistrate into error in imposing the sentence that was manifestly excessive.    
[12]	To demonstrate that a sentence is excessive, an appellant must do more than show that other offenders have received lesser sentences for similar conduct; or that the sentence is markedly different from sentences in other cases.
[13]	In R v McConnell Fraser JA (with whom Sofronoff P and Philippides JA agreed) identified (on an application for leave to appeal against sentence) that the real issue in that case was whether the sentence was manifestly excessive.  In doing so, his Honour observed that it is not established unless the sentence is “unreasonable or plainly unjust” such as to justify the conclusion “that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance”. 
Should the conviction be overturned? 
[14]	The hearing before the Magistrate was relatively short – with one police officer and the complainant Ms Jacki Cahill called by the prosecution and the appellant called by the defence. The injuries to the complainant – which were not in issue – were depicted in a photograph tendered. 
[15]	The real issue at trial was correctly identified by the Magistrate to be whether the assault was unlawful.  
[16]	His Honour gave brief ex tempore reasons. This is not unusual and not ordinarily a criticism. The jurisdiction is a busy one and it is accepted that it is necessary for there to be a degree of appropriate informality to the disposition of such matters. It is also well accepted that appeal courts should not scrutinise a Magistrate’s reasons too harshly and that “errors should not be inferred from mere infelicities of language.” 
[17]	The adequacy of a magistrate’s reasons must be assessed by looking at the reasons as a whole, including not only findings expressly made but findings to be inferred from the findings expressly made, and having regard to the particular context (including the manner in which the case was conducted and the evidence adduced). 
[18]	The following observation of the Court of Appeal in Built Qld Pty Limited v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd [2022] QCA 266 provide a useful and recent guideline as to what is required of an arbitrator of facts in circumstances where there is relevant conflict in the evidence:
“[103] Reasons for judgment must describe the conflict between the parties in sufficient detail that someone reading the judgment understands the factual basis for the judge’s decision. However, reasons for judgment need not, and indeed should not, contain any more descriptive detail than that. They should not aim to provide a comprehensive description of the dispute. There will be much evidence and many submissions which at the end of a trial will fall away as not being relevant to the findings of fact and determinations of law which are necessary to resolve the dispute according to law.
[104]	Separately, reasons for judgment must expose the reasoning process which has led to the judge’s determination. This will include explaining why the judge has made findings of fact; explaining preferences for one part of the evidence over other parts, and an analysis and resolution of the conflicts thrown up by the factual and legal aspects of the case.”
[Emphasis added]
[19]	These observations were made in the context of a civil proceeding but are apposite to the present. When this case is viewed through such a lens, the essential requirement that a Magistrate must disclose the underlying intellectual process, giving rise to the conclusions reached, has not been met for the reasons that I am about to outline. 
Analysis     
[20]	The starting point in understanding my conclusion is that on any view and uncontroversially, the impugned assault in question was not an isolated event.  It took place within a relatively short period of time during which there were a number of interactions between the complainant and the appellant (and others), most of whom were well known to each other. The complainant and the appellant were previously in a relationship with each other and have a child, who was being wheeled in a pram by the complainant at the time. The complainant’s sister and brother-in-law were also present, as was, at least for some of the relevant time, the appellant’s new girlfriend, Emma. These interactions included a number of verbal exchanges of insults and derogatory comments by all protagonists, a spit by the appellant, a punch of the appellant by the complainant, a kicking of the complainant’s sister by the appellant and an attempt to strike the appellant by the complainant followed by a slap of the complainant by the appellant (which resulted in the appellant being charged with common assault – the subject of his conviction and this appeal).   
[21]	The two lay witnesses who gave evidence gave competing versions of nearly all of what was said and done. Both of them also gave versions inconsistent with any objective view of the CCTV footage. In these circumstances it was incumbent upon the Magistrate to make specific findings of fact about what was said and done as each of these matters informed the circumstances and were relevant to whether the  assault was unlawful and most relevantly, whether the prosecution had negatived beyond reasonable doubt that the appellant had acted under self-defence or under a mistake of fact.  I am not satisfied the Magistrate properly undertook this task for a number of reasons.
[22]	First, both lay witnesses gave conflicting evidence about the verbal and physical interaction that occurred between them (and others) leading up to the circumstances that are the subject of the charge. Some of what happened is observable in the short and rather blurred CCTV footage admitted into evidence. 
[23]	In these circumstances the Magistrate was required to resolve a number of relevant factual discrepancies in the evidence and crucially explain why he preferred one witness’s version over the other. But he did not do this. This is his first error.
[24]	Instead he provided his commentary on some of the evidence without making any cogent, relevant or comprehensible findings of fact upon which any proper determination about the issue of unlawfulness could have possibly been made. By way of some examples:
(a)	First, the Magistrate found that the Appellant spat on the side of the complainant’s shoulder after which she hit the appellant “as she was entitled to do”…“given the gross and disgusting nature of spitting on someone in the first place”. But this finding overlooks that the complainant’s evidence was that she hit the appellant in the face after he “spat towards her son” (who was in the pram she was wheeling) and that the appellant’s version was that the complainant punched him first and that he then spat at, not on her and the “spray back” landed on the side of her shoulder. The Magistrate made no attempt to explain why he rejected the complainant’s evidence about the spit. By inference he appeared to have rejected the appellant’s version that the complainant threw the first punch – but this is not analysed in any meaningful way in the reasons.   
(b)	Secondly, the Magistrate failed to make any findings about whether or not the complainant and her sister chased and punched the appellant’s girlfriend as alleged by the appellant.    
(c)	Thirdly, the Magistrate made no findings of fact about what was said by the complainant’s sister-in-law prior to the appellant kicking her in the chest but yet found that anything that the sister-in-law was saying to the appellant did not justify or excuse the kick in the chest as it was an excessive response to anything. This finding did not adequately address why the Magistrate  rejected the appellant’s evidence that he kicked his sister-in-law as he thought she was going to lunge at him with a bottle – in circumstances where the CCTV footage supports this evidence as it shows the complainant’s sister appearing to be holding some sort of object in her hand. This issue is further complicated as, of course, the complainant’s sister was not called, without any explanation as to why, by the prosecution. There was no attempt by the Magistrate to grapple with this issue at all. 
(d)	Fourthly, the Magistrate found that the complainant was entitled to act in aid of self-defence of her sister but this finding is not supported by any evidence. The complainant’s evidence was confusing because it seemed to be that it was the earlier spit at her son that made her angry and that she was swinging in attack and not in defence of herself or her sister. 
(e)	Fifthly, the Magistrate made broad findings of fact about matters that were entirely irrelevant to his task to hand. For example he found that the complainant’s brother in law (who was not charged – or even called at trial) was entitled to aid the complainant and her sister under s 273 of the Criminal Code.    
[25]	The second obvious error by the Magistrate is that the issue as to whether the assault was unlawful required the prosecution to negate beyond reasonable doubt the defence of self-defence. To a large degree this issue turned on the acceptance of the complainant’s evidence as credible and reliable and the Magistrate accepting her version of events beyond reasonable doubt.  But the reasons of the Magistrate do not analyse or reason why particular aspects of the appellant’s evidence were accepted or rejected over that of the complainant.  The Magistrate ought to have at least made some attempt to explain why he accepted most of the complainant’s evidence in circumstances where there were some factors that ought to have concerned him – at least enough to undertake some scrutiny of it.   For example: the complainant did not mention that she had punched the complainant at all earlier and only conceded this under cross examination, her recollection about whether she was hit once or twice  by the appellant was uncertain and despite the  CCTV footage revealing quite plainly to the contrary, she refused to accept that she and the others were following the appellant closely.  
[26]	The third obvious error by the Magistrate is his failure to consider the issue of the failure by the prosecution to call material witnesses.
[27]	This was a relevant consideration that was overlooked in this case.  It was highly relevant because the complainant’s version was largely uncorroborated and there were a number of witnesses to this incident, most particularly the complainant’s sister, and brother-in law. There was no consideration by the Magistrate in his reasons or any oral submissions about why relevant witnesses were not called by the prosecution. The Magistrate did not turn his mind to whether there was a Jones v Dunkel inference to be drawn.  This was one of those rare cases where such a direction ought to have been considered as appropriate. 
[28]	Given this analysis, I find the Magistrate’s decision is replete with error. I  contemplated substituting my own decision but that is an impossible task given that the issue of credibility looms large – and the CCTV footage is inadequate to make a fair assessment.  
[29]	In these circumstances the only option available to the court is to allow the appeal and remit the matter back to the Magistrates Court for rehearing. In doing so  I recommend that serious consideration be given by the police prosecution as to whether a further prosecution is in the interest of justice, particularly given the length of time the appellant has spent in custody and the concession by the Crown – which I accept is a reasonable one – that the sentence imposed for the common assault offences was an excessive one in the first place.
[30]	I therefore set aside the conviction to the common assault made by the Magistrate on 3 August 2022.
Was the sentence excessive? 
[31]	Turning then to the appeal against sentence in relation to the four summary offences.
[32]	The focus down below during the sentencing process was really on the more serious offence of the common assault. So as is often the case when lesser concurrent sentences are imposed to more serious offending, there are not adequate reasons as to why sentences of four months were appropriate for each of the summary offences. There are obvious issues of totality overlooked by the Magistrate at the time in imposing cumulative sentences for these four offences and, I must say, for the common assault offence, particularly given the earlier sentence was not to expire until  December 2022. 
[33]	Regardless, when considered now in the context of the common assault being set aside, there is an obvious error infecting the charges for which the appellant pleaded guilty, that justify the sentences being set aside.    
[34]	Section 225 of the Justices Act empowers a Judge to confirm, set aside, or vary an appealed order, or make any other order considered just.  
[35]	I therefore set aside the orders and re-sentence the appellant. 
Re-sentence
[36]	The circumstances of the other offences, as outlined by the police Prosecutor at the hearing, are in relation to the failure to take reasonable care and precautions in respect of a syringe. At about 12pm on 20 May 2022 police observed the appellant enter into an altercation with another male at the Inala Town Plaza. They took up with him and ascertained that he had a warrant and conveyed him to the watch-house to search him. The police located in the large duffel bag in the appellant’s possession two uncapped hypodermic syringes and needles, and one capped hypodermic syringe and needle. None of these had been disposed of correctly and could have easily fallen from the bag onto the ground in public.
[37]	Count 2 in relation to the possession of utensils related to a small cross-body bag strapped to the body of the appellant. In it the police located a glass smoking pipe.  The pipe had burn marks on the bulb end of the pipe and is a pipe commonly used to smoke amphetamine.  The possession of property suspected of having been used in the connection of a drug offence was related to clipseal bags containing residue and a number of straws cut on an angle to use drugs being located in the large duffel bag, together with a laptop computer and an Apple iPhone.  The appellant was questioned in relation to the suspected tainted items and stated that he had been given the items three days prior and had last had them when he was in police custody.  Police checked through the database and found that the appellant had not had the property on his person when he was in police custody and given the nature of the items and the phone being blocked, police reasonably suspected the items to be stolen or unlawfully obtained.  
[38]	The submissions before the Magistrate was that ZZB was born on 18 February 1988 making him around 34 at the time of offending and 35 at the time of sentence. He had relevant criminal offending and the offences were committed whilst he was on parole for domestic violence offences, stealing and other drug offences.
[39]	ZZB completed year 12 and was said to have a good work history and a desire to return to work but that he struggles with drug and anger management issues – reflective of his history.
[40]	Against that, the pleas of guilty are early guilty pleas and at the time of sentence he had been in custody for 75 days – all of which is declarable. He has now been in custody since 20 May 2022 – on any view he has been punished more than sufficiently for these offences.          
[41]	In all of these circumstances in relation to each of the summary offences, the appropriate and just sentence, taking into account critical totality issues, is that for each of these offences he is convicted and not further punished.  Convictions are recorded. 
Protection Order Issue
[42]	The remaining issue for this appeal is the Protection Order . After the conviction for the common assault, the Magistrate made a temporary order based on the common assault conviction. The conviction underpinning the order has now been quashed. It follows – and both the legal representatives now accept – that the appropriate order is that I set aside the final protection order, which results in the temporary protection order being in place, and then the hearing in relation to the making of that final protection order will need to be dealt with back in the Richlands Magistrates Court. 
Orders
[43]	I therefore order as follows:
1.	The appellant’s conviction for common assault on 2 Aug 2022 is set aside. I remit this matter back to the Magistrates Court at Richlands to be heard by another Magistrate other than Magistrate Shearer.
2.	The appellant is granted bail on his own undertaking.
3.	The sentences of 4 months imprisonment imposed on each of the other four offences – that is, the failing to take reasonable care and precaution in respect of a syringe or needle, the possession of utensils or pipes that have been used, possession of property suspected of having been used in connection with the commission of a drug offence, and the unlawful possession of suspected stolen property – are set aside and in lieu of each of those sentences, for each of those offences, the appellant is convicted and not further punished and the conviction is recorded.
4.	The protection order made of 3 August 2022 is set aside and that matter is remitted back to the Magistrate’s court at Richlands to be heard by another Magistrate other than Magistrate Shearer.